Neighborhood Centers Inc. v. Doreatha Walker
Neighborhood Centers Inc. v. Doreatha Walker
Opinion of the Court
The Texas Whistleblower Act (the "WBA") prohibits what it defines as a "local governmental entity", including a public school district, from retaliating against an employee for reporting a violation of law by the employer.
I
Petitioner Neighborhood Centers Inc. is a private, nonprofit corporation that for more than a century has provided charitable services to low-income communities in Houston, including Head Start, workforce career centers, meals and programs for seniors, immigration services, free tax preparation services, and a community credit union.
The School hired respondent Doreatha Walker as a third grade teacher. She had been on the job about 5 months when she complained to the principal that something in her classroom, perhaps mold, was making her and the children sick. The School refused to move the class to another room. On March 27, Walker requested paperwork to submit a workers' compensation claim alleging that on March 24 she sustained injury as a result of the uncleanliness of the room in which she taught. Walker alleges that the Neighborhood Centers Director of Human Resources instructed her not to file a claim because a "workable solution" would be found. That weekend, Walker emailed her complaint to the Houston Health Department. She also wrote to the Texas Education Agency, asserting that the School had submitted falsified test scores to the Agency before Walker arrived, had not tested special-education students properly, and had not timely prepared individualized education plans for students with disabilities. The following week, the School terminated Walker's employment.
*747Walker sued the School for violating the WBA by retaliating against her.
We granted the School's petition for review.
II
The Legislature adopted the WBA in 1983
Six years later, George Green, an architect employed by the Texas Department of Human Services ("DHS"), reported to his superiors what he believed to be a pattern of fraud and corruption among agency procurement officers.
In its next regular session, the Legislature refused to appropriate the money to pay Green's judgment
Green is an example of the consequences of governmental abuse of employees, not of ferreting out government mismanagement to protect the public. Since then, the Legislature has been more cautious in expanding protection for whistleblowers. Instead of broad statutes, it has enacted several provisions carefully drawn to cover specific interests needing protection.
*749
There is ambivalence in the law of whistleblowing that ... reflects the balancing of competing public policies. Prevention of harm to the public welfare is a powerful argument in favor of legal protection for whistleblowers. However, the duty of loyalty and other competing legal and ethical principles are powerful arguments in favor of limits on what, when, to whom, how, and why whistleblowers may make their disclosures.... [T]he legal protection of all forms of whistleblowing might detrimentally affect legitimate interests of the public, employees, and co-workers.39
The WBA is not universal in its application. It covers public employees-not independent contractors
III
We begin with an overview of open-enrollment charter schools under the CSA, then recap the judicial interpretations of the provisions as they relate to this case, and finally examine recent amendments to the Act.
A
The Legislature included the CSA in its 1995 overhaul of the Texas Education Code.
*750the[ir] fiscal and academic accountability" without "unduly regulat[ing] the[ir] instructional methods or pedagogical innovations".
Open-enrollment charter schools are among those authorized by the CSA.
As originally enacted, the CSA provided that an open-enrollment charter school has the same immunity from liability as a school district but not the government's immunity from suit.
• a "local government" for purposes of the Local Government Records Act59 and certain statutes pertaining to the preservation and management of local government records60 and to government investments;61
• a "governmental entity" for purposes of certain statutes pertaining to government *751contracts62 and to competitive bidding on public works contracts;63 and
• a "political subdivision" for purposes of the Professional Services Procurement Act.64
The 2001 amendments also made laws relating to conflicts of interest,
B
Despite these statutorily drawn similarities between open-enrollment charter schools and public school districts, the Dallas Court of Appeals concluded in Ohnesorge v. Winfree Academy Charter School that while open-enrollment charter schools are public schools, they simply are not public school districts as defined and constituted by law.
But we disagreed with LTTS I.
In sum, numerous provisions of Texas law confer "status" upon and grant "authority" to open-enrollment charter schools. Their status as "part of the public school system of this state"-and their authority to wield "the powers granted to [traditional public] schools" and to receive and spend state tax dollars (and in many ways to function as a governmental entity)-derive wholly from the comprehensive statutory regime described above. With this legislative backdrop in mind, we are confident that the Legislature considers [an open-enrollment charter school] to be an "institution, agency, or organ of government" under the Tort Claims Act and thus entitled to ... an interlocutory appeal....73
*752We remanded the case to the court of appeals to determine whether LTTS was immune from suit on the breach-of-contract claim C2 Construction asserted under the Local Government Contract Claims Act.
This was the state of the case law when the present case came before the court of appeals in 2015. That court, like its sister court in Pegasus , found LTTS II controlling on the issue whether the WBA applies to open-enrollment charter schools.
C
In 2015, while the appeal in this case was pending in the court of appeals, the Legislature amended CSA Section 12.1056
• a "governmental unit" under the Tort Claims Act and subject to the same liability under that Act as a school district;80
• a "local government" under statutes regarding payment of tort claims,81 interlocal cooperation contracts,82 and self-insurance (except for issuing public securities);83
• a "local governmental entity" under the Local Government Contract Claims Act and subject to the same liability as a school district;84 and
• a "political subdivision" for purposes of the Texas Political Subdivision Employees Uniform Group Benefits Act,85 and at the school's election, for purposes of extending workers' compensation benefits.86
*753The many instances in which the CSA treats open-enrollment charter schools as governmental entities and school districts might be taken to support either of two inferences. One is that the lists are merely specific affirmations of the broader principle that open-enrollment charter schools are school districts. The other is that the instances, listed specifically by the Legislature over time, are the only ones in which open-enrollment charter schools are governmental entities. The Legislature's addition of Section 12.1058(c) in the 2015 amendments resolves all doubt. That provision states that "[n]otwithstanding Subsection (a) or (b), an open-enrollment charter school operated by a tax exempt entity ... is not considered to be a political subdivision, local government, or local governmental entity unless the applicable statute specifically states that the statute applies to an open-enrollment charter school."
The court of appeals considered the 2015 amendments on rehearing but concluded that they do not alter the analyses and holdings of LTTS II , LTTS III , and Pegasus.
Walker argues that reading Section 12.1058(c) to mean what it says conflicts with Section 12.1056(a), which provides that an open-enrollment charter school "is immune from liability and suit to the same extent as a school district".
Walker further argues that this interpretation of Section 12.1058(c) conflicts with Section 12.103(a), which provides that charter schools are "subject to federal and state laws and rules governing public schools".
Finally, Walker argues that requiring every statute to specifically state whether it is applicable to charter schools is an absurd result. But the Legislature has already gone a long way in doing just that, specifically making statutes applicable to governmental entities also applicable to open-enrollment charter schools 16 times.
Read together, Sections 12.1056(a) and 12.1058(c) provide that under a statute specifically applicable to charter schools, including those listed in the CSA, an open-enrollment charter school is as immune from liability and suit as a school district. The WBA does not apply specifically to open-enrollment charter schools and is not listed in the CSA. Thus, the WBA does not apply to open-enrollment charter schools. The result in LTTS II remains unchanged because the Texas Tort Claims Act's definition of "governmental unit", which determines the right of interlocutory appeal, is applicable to open-enrollment charter schools under the CSA.
* * * * *
Accordingly, the judgment of the court of appeals is reversed and judgment is rendered that Walker take nothing.
Justice Johnson filed a concurring opinion.
Justice Blacklock did not participate in the decision.
Tex. Gov't Code § 554.001(2) (" 'Local governmental entity' means a political subdivision of the state, including a: (A) county; (B) municipality; (C) public school district; or (D) special-purpose district or authority."); id. § 554.002(a) ("A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.").
Tex. Educ. Code § 12.101(a) ("In accordance with this subchapter, the commissioner may grant a charter on the application of an eligible entity for an open-enrollment charter school to operate in a facility of a commercial or nonprofit entity, an eligible entity, or a school district, including a home-rule school district.").
While this appeal has been pending, Neighborhood Centers has changed its name to BakerRipley.
The School offered evidence that Walker has sued her various employers multiple times over many years, always without success.
Walker also sued the School for retaliating against her for filing a workers' compensation claim in violation of Section 451.001 of the Texas Labor Code. The court of appeals held that the School is immune from suit on this retaliation claim,
See LTTS Charter Sch., Inc. v. C2 Constr., Inc. ,
Tex. Educ. Code § 12.1056(a).
Tex. Educ. Code § 12.1058(c).
Act of May 30, 1983, 68th Leg., R.S., ch. 832,
Daniel P. Westman & Nancy M. Modesitt, Whistleblowing: The Law of Retaliatory Discharge 67 (Bureau of Nat'l Aff. 2d ed. 2004) ("Beginning in the 1980s and continuing steadily thereafter, 47 states and the District of Columbia have enacted whistleblower statutes that protect state or local government employees."); see also id. at 281-307 (collecting statutes). Federal whistleblower protections were enacted in the Civil Service Reform Act of 1978, Pub. L. No. 95-454,
1983 Tex. Gen. Laws at 4753.
Letter from Jim Oliver, Dir., Legislative Budget Bd., to Hon. James E. (Pete) Laney, Chair, Comm. on State Affairs, Tex. House of Representatives (Apr. 8, 1983).
Tex. Dep't of Human Servs. v. Green ,
The jury appears to have deducted 13¢ from Green's claim.
Green ,
Christy Hoppe, State Pays Fired Man Millions; Money, Apology End Whistle-Blower's Battle , Dallas Morning News , Nov. 16, 1995, at 1A.
Act of May 25, 1995, 74th Leg., R.S., ch.721, § 3,
Hoppe, supra note 33.
See id.
See , e.g. , Tex. Agric. Code § 125.013(b) ; Tex. Health & Safety Code §§ 161.134, 260A.014 ; Tex. Hum. Res. Code § 48.257 ; Tex. Occ. Code §§ 160.002 -.004, 160.012, 301.352, 301.412-.413, 505.602-.603.
Ed Rachal Found. v. D'Unger ,
Westman & Modesitt , supra note 20 at 41.
Tex. Gov't Code § 554.001(4) (" 'Public employee' means an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity.").
Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1,
Tex. Educ. Code § 12.001(a).
Tex. Educ. Agency , 2016 Comprehensive Biennial Report on Texas Public Schools 221 (Mar. 2017).
Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, sec. 12.105(c),
Compare
Act of May 27, 2001, 77th Leg., R.S., ch. 1504, § 6, 2001 Tex. Gen Laws 5344, 5346 (amending the CSA).
Tex. Educ. Code § 12.1052(a) (citing Tex. Loc. Gov't Code ch. 201).
Act of May 27, 2001, 77th Leg., R.S., ch. 1504, § 6, 2001 Tex. Gen Laws 5344, 5346-5347 (enacting Tex. Educ. Code § 12.1054 ).
Id. at 5347 (enacting Tex. Educ. Code § 12.1055 ).
LTTS II ,
Tex. Civ. Prac. & Rem. Code § 101.001(3)(D).
LTTS II ,
LTTS III ,
No. 05-13-00482-CV,
Act of May 29, 2015, 84th Leg., R.S., ch. 922, § 1,
Act of May 29, 2015, 84th Leg., R.S., ch. 1020, § 1,
Tex. Educ. Code § 12.1056(b) (citing Tex. Civ. Prac. & Rem. Code ch. 101).
Tex. Educ. Code § 12.1056(a).
Concurring Opinion
The Court says that the question in this case is "whether the [Whistleblower Act] applies to an open-enrollment charter school operated by a tax-exempt entity." Ante at 746. It ultimately concludes that the Act, which applies only to state and local governmental entities, does not apply to open-enrollment charter schools because (1) the Whistleblower Act does not say it does, and (2) it is not listed in the Charter Schools Act. Ante at ----. I agree.
However, the Court's opinion contains language regarding immunity that I consider unnecessary to its analysis and which might be taken by some as endorsing or assuming the validity of legislation that, at first blush, seems to conflict with our prior cases and with the Texas Constitution. The Court states that "under a statute specifically applicable to charter schools, including those listed in the [Charter Schools Act], an open-enrollment charter school is immune from liability and suit as a school district." Ante at 754. The Court bases this statement on Education Code section 12.1056(a) which provides that "[i]n matters related to operation of an open-enrollment charter school, an open-enrollment charter school or charter holder is immune from liability and suit to the same extent as a school district." TEX. EDUC. CODE § 12.1056(a).
Whether, under the Texas Constitution, the Legislature has authority to grant immunity is not a question presented in this case. It is an important question, and one the Court has addressed before. The doctrine *755of sovereign or, as applied to political subdivisions of the state, governmental, immunity developed through the common law. The judiciary "has historically been, and is now, entrusted with 'defin[ing] the boundaries of the common-law doctrine and ... determin[ing] under what circumstances sovereign immunity exists in the first instance.' " Wasson Interests, Ltd. v. City of Jacksonville ,
In LTTS Charter School, Inc. v. C2 Construction, Inc. , we considered whether an open-enrollment charter school was a "governmental unit" under the Tort Claims Act and, therefore, whether the school was entitled to take an interlocutory appeal from the trial court's denial of its plea to the jurisdiction.
That the question is not presented or decided in this case is manifested by the Court's brief reference to the statutory language and the lack of the type of discussion and analysis warranted regarding an issue of such constitutional magnitude. I do not read the Court's opinion in this case to endorse the concept that under the Texas Constitution the Legislature is authorized to grant sovereign or governmental immunity, or that it has done so in section 12.1056(a). That question, if it were to be presented, is one of constitutional dimension, warranting full and transparent briefing, analysis and discussion-especially in light of our prior statements and decisions. See, e.g. , Univ. of the Incarnate Word v. Redus ,
Reference
- Full Case Name
- NEIGHBORHOOD CENTERS INC., Petitioner, v. Doreatha WALKER, Respondent
- Cited By
- 12 cases
- Status
- Published